ADEBAYO DAVID ALARAPON & ORS v. PEOPLES REDEMPTION PARTY & ORS
(2019)LCN/12543(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/AK/172/2017
RATIO
COURT AND PROCEDURE: STAMP OF THE NBA
“I have earlier on in this judgment pointed out that the subject stamp/seal is produced by N.B.A. The stamp/seal is not cash and carry product. Since you need to apply for it by making payment first and wait for it to be supplied by N.B.A. It is not likely that NBA will produce same in advance, since it will contain the details of individual legal practitioner. That presupposes that payments must precede production.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: WHERE A RIGHT IS ACQUIRED ILLEGALLY
A right acquired from an illegality cannot be enforced by the Court. Court orders and judgments are binding and subsisting until it is set aside by a Court of competent jurisdiction. See Peter Obi V. INEC (2007) 7 SCNJ 1; Ekanem Ekpo Otu V. A.C.B International Bank Plc & Anor (2008) 1 SCNJ 189; Uyanemenam Nwora & Ors V. Nweke Nwabueze & Ors (2011) 12 SCNJ 67; Hon. Dr. Okechukwu Udeh V. Barrister Handel Okoli & Ors (2009) 3 SCNJ 1.”
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“It will amount to stating the obvious to say that the right to fair hearing is a constitutional one such that any breach of it will necessarily render the proceedings null and void. The doctrine of fair hearing has been immortalized into the Latin maxims of ‘audi alteram partem and nemo judex in causa sua’. The audi alterem partem principle affords both sides to a dispute ample opportunity of presenting their cases to enable the Court give a fair and just decision. In order words a decision is said to be just and fair when both parties to a dispute are afforded a hearing or an opportunity of a hearing. If a hearing or opportunity of being heard is denied a party, the decision from such proceeding will be said to be perverse and liable to be set aside on appeal.
See: Section 36 (1) of Constitution of Federal Republic of Nigeria 1999 (as amended); Vivian Clems Akpomgbo-Okadigbo & Ors V. Egbe Theo Chidi & Ors (No.1) (2015) 10 NWLR (Pt. 1466) 171.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. ADEBAYO DAVID ALARAPON
(Chairman Akure South Local Government)
2. OLADAYIYE OLANIRAN ISAAC
(Elected Councilor and Leader of Council Akure South Local Government)
3. ELUMARO ADESANMI JULIUS
(Chairman Irele Local Government)
4. ALADETIMEHIM JOSEPH OLUSOLA
(Chairman Akoko North West Local Government)
(For the themselves and as representatives of all the democratically elected Chairmen and Councilors of all the Eighteen Local Governments in Ondo State excluding the Chairman of Akure North Local Government; Mr. Bandele O. Babalola)
5. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. PEOPLES REDEMPTION PARTY
2. MR. ALLI SAMSON OLUWAFEMI
3. MR. AYANTOLA OLUWAGBENGA
4. MR. IBUKUN ARUELEOYE
5. PRINCE BANKI AYELABOLA HENRY
6. ONDO STATE INDEPENDENT ELECTORAL COMMISSION
7. PROFESSOR OLUGBENGA IGE, (Chairman Ondo State Independent Electoral Commission)
8. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ONDO STATE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This appeal questions the correctness of the decision of Hon. Justice S. A. Sidiq of Ondo State High Court sitting at Akure. Appellants were not parties at the Court below and their application to be joined was refused. They sought for and were granted leave to appeal by this Honourable Court on 9/3/2018. The 1st to 5th Respondents commenced the suit that culminated into this appeal vide an Amended Originating Summons filed on 6/3/2017, seeking for the following reliefs:-
1. A DECLARATION that the Judgment of the Federal High Court, Abuja Judicial Division delivered by Hon. Justice A. F. A. Ademola on 17th December, 2015 which declared the status of the 1st Claimant as a registered Political Party is binding on all persons and authorities, including the defendants pursuant to the mandatory provisions of Sections 1(1), (3) and 287, unless and until the said judgment is set aside.
2. A DECLARATION that all persons and authorities, including the defendants are bound to recognize the status of the 1st claimant and treat the 1st Claimant as a registered political party in Nigeria as adjudged by the Federal High Court, Abuja Judicial Division in a judgment delivered by Hon. Justice A. F. A. Ademola on 17th December, 2015, pursuant to the mandatory provisions of Sections 1(1) (3) and 287 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, unless and until the said judgment is set aside.
3. A DECLARATION that the defendants have no right or discretionary power to prevent the 1st Claimant, its members and prospective candidates from participating in the Local Government Election conducted on 23rd April, 2016 on the assumption that Independent National Electoral Commission (INEC) intended to appeal against the judgment delivered by Hon. Justice A. F. A. Ademola on 17th December, 2015, which ordered the recognition and re-registration of the 1st Claimant as a Political Party when the said judgment has not been set aside by any Court of competent jurisdiction.
4. A DECLARATION that the defendants’ executive or administrative actions of discriminating and preventing the 2nd – 5th Claimants from freely associating and participating fully in the Local Government Election conducted on 23rd April, 2016 by the said 1st and 2nd defendants on the basis of political opinion formed by 2nd – 5th Claimants as members and prospective candidates of the 1st claimant is a flagrant violation of the fundamental rights of the 2nd – 5th Claimants enshrined in the provisions of Sections 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Articles 2, 3(1)(2), 10(1), 11 and 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap. A9) Laws of the Federation of Nigeria, 2004, and is therefore illegal, unconstitutional, null and void.
5. A DECLARATION that the purported Local Government Election of 23rd April, 2016 conducted by the 1st – 2nd defendants to fill all the elective offices of Chairmen and Councilors across the 18 Local Government Areas of Ondo State, or any appointments made at all pursuant to that election in violation of the mandatory provisions of Sections 1(1)(3), 40,42,287 of the Constitution of the Federal Republic of Nigeria 1999, as amended, and Articles 2, 3 (1)(2), 10( 1), 11 and 13 (1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap. A9) Laws of Federation, 2004, is illegal, unconstitutional, null and void and of no effects whatsoever.
6. AN ORDER SETTING ASIDE the purported Local Government Election of 23rd April, 2016 conducted by the 1st – 2nd defendants to fill all the elective offices of Chairmen and Councilors across the 18 Local Government Areas of Ondo State, or any appointments made at all pursuant to that election in violation of the constitutional rights of the claimants preserved and protected by the mandatory provisions of Sections 1(1)(3), 40,42,287 of the Constitution of the Federal Republic of Nigeria 1999, as amended, and Articles 2, 3(1)(2), 10(1), 11 and 13 (1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of Federation, 2004.
7. AN ORDER DISSOLVING the Local Government Administration set up across all the 18 Local Government Areas of Ondo State pursuant to the Local Government Election conducted on 23rd April, 2016 by the 1st – 2nd defendants in violation of the mandatory provisions of Sections 1(1)(3), 40,42,287 of the Constitution of the Federal Republic of Nigeria 1999, as amended, and Articles 2, 3(1)(2), 10(1), 11 and 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of Federation, 2004.
8. AN ORDER COMPELLING AND DIRECTING the defendants to conduct fresh Local Government election in Ondo State that will recognize and allow the 1st Claimant, its members and candidates to fully participate in such election pursuant to the Judgment delivered by Hon. Justice A. F. A. Ademola on 17th December, 2015 and in compliance with the mandatory provisions of Sections 1(1)(3), 40, 42 and 287 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and Articles 2, 3(1)(2), 10(1), 11 and 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of Federation, 2004.
RELEVANT FACTS
The case of the 4th Respondent is that the grievance of the 1st to 5th Respondents who were the Claimants at the lower Court as at the time the suit was filed on 16/3/2016 against the 6th, 7th and 8th Respondents as 1st, 2nd and 3rd Defendants respectively, was that the 6th and 7th Respondents in this appeal were planning to conduct the Ondo State Local Government election without recognizing the 1st Respondent and its nominated candidates, among whom were 2nd to 5th Respondents in this appeal.
The 1st to 5th Respondents claimed that the 6th and 7th Respondents’ scheme to disenfranchise them amounted to denial of their fundamental right. While the case was pending in Court, the 6th and 7th Respondents conducted the subject election without the participation of the 1st Respondent and its nominated candidates. Consequently, the 1st to 5th Respondents applied for an amendment of their Originating Summons to reflect the reality on ground by an addition of a relief to set aside the election conducted without their inclusion by the 6th and 7th Respondents.
They furthered that it was after the originating summons was heard and judgment on same reserved that the Appellants brought a motion for joinder which was heard and refused by the trial Court. And judgment was given for the 1st to 5th Respondents.
The case of the 6th, 7th and 8th Respondents are substantially the same with that of the 4th Respondent. The 1st, 2nd and 3rd Respondents neither filed any process nor were they represented in this appeal.
The Appellants’ case is that they were not made parties to the suit by the 1st to 5th Respondents. That they were duly returned as winners in Local Government Election conducted by the 6th and 7th Respondents on 23/4/2016. That it was when they became aware that the 1st to 5th Respondents amended their originating Summons to include a relief to set aside the election and dissolution of the Local Government Administration which will directly affect their interest that they sought to be joined as a party. Their application was refused by the trial Court and the judgment set aside their election. They sought for and obtained the leave of this Court as an interested party to appeal the said judgment on 9/3/2018.
The Appellants’ Notice of Appeal, dated and filed on 15/3/2018, contained seven (7) grounds of appeal.
In compliance with the extant rules of this Court, parties filed and exchanged their respective Briefs of Argument. The Appellants’ Brief dated 6/5/2018 but filed 7/5/2018, was settled by Oke Olusola Esq. While the 4th Respondent’s Brief dated and filed on 21/9/2018 but deemed properly filed on 13/11/18 was settled by A. S. Subair Esq. The Appellants filed a Reply Brief to the 4th Respondent’s Brief on 4/10/2018 but was deemed properly filed on 13/11/2018.
The 6th to 8th Respondents’ Brief dated and filed 6/6/2018, was settled by Titiloye Charles Esq. And the Appellants’ Reply Brief to the 6th to 8th Respondents, dated 3/10/2018 but filed 4/10/2018, was settled by Oke Olusola Esq.
At the hearing of this appeal on 13/11/2018, the Learned Appellants’ Counsel adopted the Appellants’ Brief and Reply Briefs as their arguments in this appeal and therein raised the following issues for resolution, thus:-
1. Whether the judgment of the lower Court delivered on 31st March, 2017 did not breach Appellants? right to fair hearing warranting the setting aside of same. Distilled from ground 1.
2. Whether the entire proceedings before the lower Court are not a nullity having regard to the conduct of the trial, and the substantive relief setting aside the election of the Appellants when the Court was not an Election Petition Tribunal set up under the law and the Appellant were not parties to the suit. Distilled from grounds 2, 3, 5 and 7.
3. Whether the lower Court was vested with jurisdiction when it adjudicated over the amended Originating Summons before it to accommodate a cause of action that arose after the filing of the suit. Distilled from ground 6.
4. Whether it was not wrong for the Court below to proceed with the trial of this case in the face of the processes filed for the withdrawal of the suit which were pending in the case file. Distilled from ground 4.
The 4th Respondent’s Counsel adopted his brief and therein raised a preliminary objection against the appeal. He distilled one issue for determination of the preliminary objection thus:
“Whether the Appellant’s appeal is not incompetent and consequently ousts the jurisdiction of this Honourable Court to entertain same for not having been initiated as required by law.”
In the alternative, Learned Counsel for 4th Respondent raised the following three (3) issues for resolution thus:-
1. Whether Grounds 6 and 7 of the Appellants? Notice of Appeal as well as the Appellants’ issue 2 and 3 formulated thereon are not incompetent, for challenging the interlocutory decision and/or exercise of discretion by the lower Court, when leave and/or extension of time to appeal the interlocutory decision was neither sought nor obtained by the Appellants.
2. Whether the 1st to 5th Respondents were not unlawfully excluded from participating in the Ondo State Local Government Election conducted on 23/4/2016 by the 6th and 7th Respondents from the evidence before the Court, particularly Exhibit 16. Ground 5.
3. Whether the learned trial Judge erred in law in exercising jurisdiction in this case and determining same upon the 1st to 5th Respondents’ Amended Originating Summons in the circumstances of this case, particularly in view of the parties before it and the motion on notice dated 29th March, 2017 filed by Femi Aborisade Esq., after the 1st to 5th Respondents had changed and/or replaced him with Segun Ogodo Esq., as their Counsel. Grounds 1, 2, 3 and 4.
The 6th to 8th Respondents’ Counsel adopted their Brief and therein, also raised a preliminary objection. However, in the alternative the 6th to 8th Respondents’ Counsel distilled the following four (4) issues for determination thus:-
1. Whether this Court has jurisdiction to entertain the Appellants’ appeal on the issue of Counsel representation for Peoples Redemption Party (PRP), that is the 1st Respondent. (See Ground 4 of the Appellants Notice of Appeal).
2. Whether Ground 1 of the Appellants’ Notice of Appeal is competent and whether the Appellants are necessary parties to be joined in the pre-election matter between the 1st to 5th Respondents and 6th to 8th Respondents. (from Ground 1 of the Notice of Appeal).
3. Whether the trial Court has jurisdiction to have granted the relief sought by the 1st to 5th respondents in view of the fact that the trial Court is not an election petition tribunal (from Ground 2).
4. Whether the trial Court has the power to amend the relief sought by the claimant which allowed the dissolution of the 18 Local Government Councils in Ondo State. (Ground 6 and 7).
In due obeisance to the dictates of the law, I shall attend to the preliminary objections first.
ARGUMENT ON 4TH RESPONDENTS PRELIMINARY OBJECTION.
The learned 4th Respondent’s Counsel premised his objection on two legs: Firstly, he reproduced the provisions of Paragraph 10 (1) – (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 to submit that it is mandatory that all processes filed in Court by Legal Practitioners must be affixed with a seal/stamp approved by Nigerian Bar Association and that failure to so do renders such process incompetent unless and until same is regularised. He relied on Yaki V. Bagudu (2015) 18 NWLR (pt. 1491) 288 at 319 – 32; Uchiv V. Sabo (2016) 16 NWLR (Pt. 1538) 264 at 307 paras. B – E; ARDO V. INEC (2017) 13 NWLR (Pt. 1583) 450 at 483 para F; NBA V. Kehinde (2017) 11 NWLR (Pt, 1576) 225 at 245 – 246 paras H – F. He argued that the Appellants’ Notice of Appeal filed on 15/3/2018 is incompetent since the Nigerian Bar Association’s approved stamp was not affixed on same.
Counsel contended that the Rules of Profession conduct for Legal Practitioners is emphatic that the N.B.A approved stamp/seal must be affixed on the process and not a bank teller for payment for N.B.A. stamp/seal, since the bank teller for payment for the stamp does not contain details of the legal practitioner signing the process as did the stamp/seal. He relied on this Court’s decision in Adewale & Anor V. Adeola & 2 Ors (2015) LPELR 25972 at pages 19 – 20.
Secondly, Learned Counsel contended that the Appellants having obtained leave to appeal this case from this Court on 9/3/2018, is required to file the Notice of Appeal in the Registry of this Court and not that of the High Court as was done. He pointed out that this appeal was filed not as of right but with leave. He maintained that failure to file the Notice of Appeal at the proper registry and without the N.B.A. approved stamp on same divested this Court of jurisdiction to entertain the appeal. He urged that the preliminary objection be resolved for the Respondents.
Reacting, Learned Appellants’ Counsel pointed out that parties are in agreement that the Appellants filed the Notice of Appeal with evidence of payment for the N.B.A. stamp/seal. He then submitted that the Appellants’ Counsel having duly paid for the said N.B.A. stamp/seal, cannot be held liable for the N.B.A’s failure/delay in producing the stamp/seal and making same available to the Appellants’ Counsel. He argued that the presumption of regularity enures in favour of the Appellants since it will be unconscionable to punish the Appellants for the delay of the N.B.A. Counsel pointed out that all other processes filed by the Appellants before the 4th Respondent filed this Brief, has the N.B.A. approved stamp/seal containing details of Ole Olusola Esq. as a duly enrolled legal practitioner of the Supreme Court of Nigeria. He argued that in any case, the non fixing of the N.B.A stamp/seal is an irregularity which is curable in the face of evidence of payment for the stamp/seal and possession of requisite qualification to practice as a lawyer. He called in aid the case of Nyesom V. Peterside & Ors (2016) LPELR 40036. He submitted that the Courts are enjoined to do substantial and not technical justice.
On the second leg of the preliminary objection, Counsel pointed out the fact that the Appellants was not a party to the suit that culminated into this appeal, but appealed as an interested party with leave from this Court. He belated the 4th Respondent’s Counsel for his strange submission on this leg of his objection for his failure to cite any authority – statutory or judicial precedent to support those submissions. He pointed out that Sections 241, 242 and 243 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) made provision that an interested party can only appeal with leave, it was silent on where, upon the grant of leave to appeal, the Notice of Appeal should be filed.
He reproduced Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016, to the effect that ‘all appeals’ are to be filed at the Registry of the Court below. It did not differentiate appeal as of right from appeal with leave. He relied on Omekume & Ors V. Ogude & Anor (2016) LPELR 40783. He argued further, that since the Court of Appeal only becomes seized of an appeal upon transmission of record of appeal and the entering of appeal at the Court of Appeal, and there cannot be a record of appeal without filing of notice of appeal, it presupposes that record of appeal should be filed at the Court below. He furthered that where however after transmission, an amendment is made to the Notice of Appeal, then the Amended Notice of Appeal will be file at the Court of Appeal registry. He relied on S.P.D.C & Ors V. Agbara & Ors (2015) LPELR 25987.
He urged that the 4th Respondent’s submissions on his objection be discountenanced as without basis in law and equity.
APPELLANTS’ PRELIMINARY OBJECTION TO THE 4TH RESPONDENT’S BRIEF OF ARGUMENT.
Arguing his objection, Learned Appellants’ Counsel submitted that there is a difference between argument of issues properly distilled from grounds of appeal and challenging the competence of the grounds of appeal. He is of the opinion that the latter is an objection relating to the competence of the appeal, not the merit of the arguments. He contended that a valid Brief must raise issues that relate to the grounds of appeal of the appellants, unless there is a cross appeal in which case the issues must relate to the grounds contained in the cross-appeal. He pointed out that the 4th Respondent did not file a cross appeal and as such must raise issues that relate to the Appellants’ grounds of appeal and not outside it. Counsel submitted that 4th respondent?s issue 1 as couched, does not emanate from the Appellants’ grounds of appeal but rather, is an objection to the competence of the appeal itself. He urges that the said issue be struck out.
THE 6TH TO 8TH RESPONDENTS’ PRELIMINARY OBJECTION TO THE APPELLANTS’ APPEAL.
The 6th to 8th Respondents’ Counsel vide paragraph 3.3 of their Brief of Argument, elected to argue their preliminary objection together with their issues 1 and 2 of their issues for determination. I shall therefore, take their argument on same while summarizing their arguments on those issues.
APPELLANTS’ PRELIMINARY OBJECTION TO THE 6TH TO 8TH RESPONDENTS’ BRIEF OF ARGUMENT.
Arguing their objection, Learned Counsel for the Appellants contended that since issues for determination are limited to the grounds contained in the Notice of Appeal filed by the Appellants’ and the 6th to 8th Respondents did not file cross-appeal, that the election of the 6th to 8th respondents to argue their grounds of objection together with their issues 1 and 2 operated as a virus to corrupt those issues since the grounds for those objections did not relate to the grounds of appeal contained on the Appellants’ Notice of Appeal.
He urged that the 6th to 8th Respondents’ issues 1 and 2 be struck out for incompetence.
ARGUMENT OF ISSUES.
APPELLANTS’ ISSUES:
Arguing issue 1, Learned Appellants’ Counsel reproduced the Respondents’ relief granted by the trial Court in its judgment, to submit that the said reliefs directly affected the interest of the Appellants as the winners of the various Chairmanship and Councillorship seats in the election conducted by the 6th and 7th Respondents on 23/4/2016. He argued that by the said contest and victory, the Appellants acquired a constitutional guaranteed right to occupy their respective seats for a minimum period of three years. He contends that for such right to be taken away, the Appellants must be afforded an opportunity to be heard by the trial Court. He emphasised that the Appellants were neither made a party nor were they allowed to be joined as one when they became aware of the suit and sought to be joined. Counsel relied on Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and the case of Akpamgbo Okadigbo V. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 171, to the effect that failure of the trial Court to afford the Appellants the opportunity to be heard before delivering its judgment amounted to denial of Appellants’ constitutional right of fair hearing.
On their issue 2, Learned Counsel argued that by the amendment of the 1st to 5th Respondents Originating Summons, the character of their case and reliefs changed and directly affected the rights and interest of the Appellants. He again reproduced the said 1st to 5th Respondents’ reliefs vide the amended originating summons, to argue that the said amendment rendered the Appellants necessary parties that ought to have been joined in the suit. He relied on Ige V. Farinde (1994) 7 NWLR (Pt. 354) 42 at 65 – 66 para D – H; Azubuike V. PDP & Ors (2014) LPELR 22258 15 – 16 para G – C, to the effect that without the Appellants as necessary party, it will be impossible to effectively and completely determine the case by the trial Court. He further relied on G & T. Investment Ltd V. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500 at 531, H – B to the effect that where proper parties are not brought before the Court, the Court would lack jurisdiction to entertain the matter. Counsel furthered that by the said Amendment, the reliefs sought turned the 1st to 5th Respondents’ claim to a challenge of the election and return of the Appellants which also robs the trial Court of jurisdiction to hear and determine same.
Counsel argued that the trial Court was not an Election Petition Tribunal by virtue of Sections 88 (1), 90, 91 and 92 of the Local Government System, Establishment and Administration of Local Government Councils Cap 87, Vol. 2, Laws of Ondo State of Nigeria (2006), as to have jurisdiction to hear and determine issues bothering on the election of the Appellants in the election conducted on 23/4/2016 by 6th and 7th Respondents. He stated that a challenge to the result of an election cannot properly be done by enforcement of fundamental right but by petition.
On issue 3, Counsel contended that in the 1st to 5th Respondents’ initial originating summons, none of the reliefs sought affected the interest of the Appellants. He argued that by the said amendment, question 3 and 4 and reliefs 5, 6, 7 and 8 relates to issues that happened long after the case was filed.
He reproduced paragraph 15 of the Affidavit in Support of the Amended originating Summons to submit that the 1st to 5th Respondents did not brief their Counsel until 21/11/2016 to challenge the election conducted on 23/4/2016. He contended that instead of challenging the said election by petition, 1st to 5th Respondents amended their Originating Summons to include a cause of action that arose months after the filing of their claim at the Court below. He relied on Gowon V. Ike-Okongwu (2003) 6 NWLR (Pt. 815) 49 paras B C to the effect that an amendment cannot in law, introduce a cause of action that arose after the case has been filed in Court and that it is wrong for the trial Court to have assumed jurisdiction over the case. He contends that 6th and 7th respondents are public officers whose action cannot be challenge after 3 months. He posited that in this case, the challenge was done 11 months after the conduct of the said election.
On issue 4, Counsel pointed out that Femi Aborishade Esq., was the original Counsel that filed this suit and Olusegun Ogodo Esq., who took over the suit filed motion for change of Counsel but failed to serve same on Femi Aborishade.
He furthered that Femi Aborishade Esq. upon becoming aware of the change of Counsel filed a motion on Notice to discontinue the suit against the 6th – 8th Respondents, but the trial Court refused to determine that motion one way or the other. He relied on Mobil Producing Nig. Unltd V. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 412 – 413; to the effect that Courts are bound to hear and determine all applications before it and that failure to do so amounts to denial of fair hearing. He reproduced Rule 29 of the Rules of Professional Conduct for Legal Practitioners to argue that there was no proper change of Counsel from Femi Aborisade Esq. to Olusegun Ogodo Esq., and that same vitiates the proceedings, rendering same null and void.
4TH RESPONDENT’S ARGUMENT
Arguing their issue 1, learned Counsel for the 4th Respondent submitted that grounds 6 and 7 of the Appellants’ Notice of Appeal are questioning the trial Court’s interlocutory ruling of 21/3/2017 allowing the Respondents to amend their Originating Summons. He furthered that the grant or refusal of an amendment is within the discretionary power of the Court.
Counsel submitted that by virtue of Sections 241 and 242 of the Constitution of Federal Republic of Nigeria 1999 (as amended) an appeal on interlocutory decision must be with leave sought and obtained. He relied on Nikagbatse V. Opuye (2018) 9 NWLR (Pt. 1629) 85 at 98 paras B ? C; Olanipekun V. Olanipekun (2015) 6 NWLR (Pt. 1456) 488 at 501 paras E ? F, to the effect that any notice of appeal filed without prior leave where leave is required and any issue formulated thereon are incompetent.
He submitted that grounds 6 and 7 of the Appellants’ Notice of Appeal is incompetent. He further relied on Barbus R Co. (Nig.) Ltd V. Okafor-Udeji (2018) 11 NWLR (Pt. 1630) 298 at 307 paras F – H, to the effect that a competent and incompetent issues cannot validly be argued together. Counsel then submitted that Appellants’ issues 2 and 3 emanated from grounds 6 and 7 of the Notice of Appeal and as such are incompetent also. He pointed out that the said interlocutory decision was made over a period of one year and that the Appellants neither sought for leave nor included an application for leave to appeal the interlocutory decision when they sought for and was granted leave for extension of time to appeal the final judgment on 9/3/18.
He is of the opinion that Appellants’ issues 2 and 3 cannot be resolved without delving into the propriety or otherwise of the order granting Respondents leave to amend their originating Summons. He submitted that ground 6 and 7 and issues 2 and 3 formulated therefrom are all together incompetent.
Vide his issue 2, Counsel submitted that the 1st Respondent is a registered political party with constitutional rights to participate in all elections in Nigeria including Ondo State Local Government Election held on 23/4/2016 by virtue of Section 221 of the Constitution. He argued that the 1st to 5th Respondents took active steps to participate in the Ondo State Local Government Elections then slated for 23/4/2016 by notifying the 7th Respondent of their scheduled party primaries. And that the officers of the 6th Respondent supervised their primaries wherein the 2nd to the 5th Respondents emerged as candidates and their names were sent to the 6th and 7th Respondents for the election selected for 23/4/2016.
Surprisingly, said Counsel, the 6th and 7th Respondents refused to release Form CF001 and CF002, known as affidavit/personal particulars of candidates and party list of candidates for Chairmanship and Councillorship Elections which must be filled and submitted by political parties and their candidates as a pre-condition for participating in the Local Government Election in line with items No. 5 of Issuance of Notice of Election. The 6th and 7th Respondents refusal was on the ground that INEC intended to appeal the judgment of the Federal High Court that set aside INEC’s deregistration of the 1st Respondent. The 6th and 7th Respondents disregarded the subsisting Federal High Court judgment and prevented the 2nd to 5th Respondent from participating in the election. Counsel posited that the exclusion of the 1st to 5th Respondents from the election by the 6th ? 7th Respondents is discriminatory and violates Sections 42 (1) (a) and (b) of the Constitution.
On his issue 3, Counsel argued that election petition Tribunal could not have been the proper forum for the 1st – 5th respondents to ventilate their grievances since their suit was instituted on 16/3/2016 before the election took place on 23/4/2016.
He furthered that an amendment in law is retrospective and therefore dates back to when the process amended was filed. It is the Counsel’s submission that by virtue of Order II (2) of the Fundamental Right (Enforcement Procedure) Rules, 2009, actions for enforcement of fundamental rights can be commenced by any acceptable mode of commencement of a suit in Court. He submitted further that all the reliefs granted to the 1st – 5th respondents borders on their fundamental rights.
On the issue of pending motion for withdrawal filed by Femi Aborishade Esq., Counsel argued that the motion for change of Counsel was filed by Olusegun Ogodo on 24/6/2016 and same granted on 21/2/2017 prior to the filing of the said motion by Femi Aborishade on 29/3/2017. He argued that by necessary implication, Femi Aborishade has ceased to be Counsel for 1st – 5th Respondents as at the time he filed the motion for withdrawal of the suit against the 1st Respondent.
On the issue of proper parties before the Court, Counsel submitted that the 1st – 5th Respondents commenced this suit to prevent the 6th and 7th respondents from illegally excluding them from the local Government Election in Ondo State slated for 23/4/2016. He argued that the Appellants’ were not conferred with statutory responsibility of conducting election and therefore cannot be necessary parties. He argued further that when the 6th and 7th respondents went ahead to exclude the 1st – 5th Respondents from the election in defiance to not only the pending suit but also the subsisting judgment of the Federal High Court setting aside the deregistration of 1st Respondent, the 1st to 5th Respondents amended their Originating Summons to include prayers for nullification of the election. Counsel posited that the only interest of the Appellants herein are as to the fact that they were the products of the purported election conducted by the 6th to 7th Respondents after excluding the 1st to 5th Respondents. He furthered that the said elected offices the Appellants seeks to protect are public offices created by law and that the 8th Respondent as the Chief Law Officer of the State is eminently qualified to sue and be sued for the protection of the law as it relates to the interest of public offices within the State.
He relied on Section 3 (1) and (2) as well as Section 318 of the Constitution to submit that a State includes all the Local Government Areas within the State. He argued that the Chief Law Officer, who is the 8th Respondent duly represented the interest of the Appellants. He relied on the case of Provost, Lagos State College of Education V. Edun (2004) 6 NWLR (Pt. 870) 476 at 495 – 496 paras H ? B, to submit that the State Attorney-General on represent a State, Local Government Areas inclusive, in a case. He posited that the Appellants were impliedly sued and represented through the 8th respondent for the purpose of the interpretation of the law viz-a-viz the administrative actions or omissions of the 6th and 7th Respondents, in determining the propriety or otherwise of the purported election that the Appellants claim to have brought them to their respective public offices.
On the relief of reinstatement sought by the Appellants, Counsel argued that agreeing without conceding that the Appellants were unlawfully removed from office, that relief of reinstatement cannot be appropriate in the circumstances of this case, but payment of their entitlements up till 25/4/2019 when their tenure would expire. He submitted that the 6th and 7th Respondents have set a new timetable and preparations are in top gear for the conduct of another Local Government Election in the State. He relied on the case of Eze V. Governor Abia State (2014) 14 NWLR (Pt. 1426) 192 at 220 para C – H; Governor, Ekiti State V. Ojo (2006) 17 NWLR (Pt. 1007) 95 at 126 paras. C – D, to the effect that where a person elected for a fixed term is wrongly removed, such a person will only be entitled to all his entitlements and not reinstatement.
The Appellants’ Counsel vide their Reply Brief on the allegation that grounds 6 and 7 and issues 2 and 3 challenge the amendment of the originating summons, submitted that since the judgment of the lower Court was based on the Amended originating Summons, the appellants are not questioning the propriety or otherwise of the amendment but whether the trial Court has the jurisdiction to remove the Appellants based on the amendment. He argued that issue of jurisdiction can be raised at any time. And that pursuant to Madukolu V. Nkemdilim (supra), that jurisdiction of Court can be challenged if, (1) there is any feature in the case that deprives the Court of its jurisdiction, (2) whether the case is properly instituted, or (3) The subject matter is within its scope. On the issue of obtaining leave to appeal an interlocutory decision, Counsel submitted that the Appellants could not have appealed the interlocutory decision since it was never a party and their application to be joined was refused the same day that final judgment was delivered. Counsel pointed out that the facts adumbrated by the 4th Respondent’s Counsel at paragraph 6.4; 6.5 and 6.10 to the effect that 1st Respondent and its candidates were not allowed to participate in the said election of 23/4/2016, were not contained in the 1st – 5th Respondents’ affidavit in the Court below.
Counsel conceded that as at 16/2/2016, when the suit that culminated in this appeal was filed the trial Court had jurisdiction. But that upon the amendment of the Originating Summons and the reliefs sought, the originating Summons had the effect of an election petition. Counsel argued that the 1st – 5th Respondents’ challenge on the ground of exclusion from participating in the election resulting in the Appellants? election annulment were powers conferred on election petition Tribunal by Section 88 to 97 of Local Government Administration, Conduct of Local Government Election and Allied Matters Law, cap 87 vol. 2 Laws of Ondo State 2006. It is the submission of Counsel that fundamental enforcement procedure rules is not an acceptable means of commencement of a suit to declare an election illegal. On the status of Femi Aborishade Esq., and the motion he filed, Counsel submitted that Order 48 Rule 4 of the High Court of Ondo State (Civil Procedure) Rules, 2011 provides that a Counsel who had once appeared in a case for which a change of Counsel had been granted can still re-appear in the case. In any case, said Counsel, the national Chairman of the 1st Respondent was in Court on that day and did not disown Femi Aborishade Esq.
On consequential amendment of the 1st – 5th Respondents Originating Summons, Counsel submitted that a suit cannot be filed to challenge elections in the garb of fundamental human right and as such that the consequential reliefs for nullification of the election are not grantable. On the representation of the Appellants by the 8th Respondent, Counsel argued that it will amount to circumvention of interest of justice since the interest of the 6th – 8th Respondents in this appeal are contradictory and at variance with the interest of the Appellants. Counsel argued that agreeing without conceding that the 1st – 4th Appellants are public officials for whom the 8th Respondent could lawfully make implied representation, how about the 5th Appellant that is neither an agent nor official of the State.
He furthered that implied representation is not possible in the circumstances of this case since salaries and emoluments of office does not go to the office but to the elected persons. He reproduced Section 318 of the Constitution to argue that the use of the word ‘or’ is disjunctive meaning that Local Government is not obliged, as a matter of Constitutional Provision, to be represented by the Attorney-General of a State. On the propriety of reinstating the Appellants and paying them their entitlements up till when their term will expire, Counsel submitted that it accords with justice and rule of law to reinstate the Appellants since their term has not expired. He pointed out that the cases of Eze V. Governor Abia State (supra); and Governor, Ekiti State V. Ojo relied on by the 4th Respondent is not applicable to this case because in this case, the Appellants’ terms has not yet expired. He submitted that the Appellants deserved to be paid their entitlements from the date they were removed and also reinstate them to finish their remaining term.
6TH – 8TH RESPONDENTS’ ARGUMENTS.
Arguing grounds 1, 2 and 4 of their preliminary objection together with their issue 1, Learned Counsel for the 6th – 8th Respondents submitted that it was wrong for the Appellants to claim that refusal of the trial Court to recognise Femi Aborishade as Counsel for the 1st Respondent and give effect to his motion to withdraw this suit amounted to denial of the Appellants’ fair hearing. Since, said Counsel, the Appellants have not shown how in law, the trial Court proceedings in respect of Counsel representation for the 1st Respondent affected and caused a breach of fair hearing for the Appellants.
He relied on the case of Williams V. Williams (2015) All FWLR (Pt. 782) 1596 at 1621 paras C – D, for a definition of locus standi, to submit that the Appellants are (1) a different political party and (2) members of a different political party – have no interest in another political party as to make a case for Counsel representation of 1st Respondent. He furthered that at best the issue of Counsel representation of 1st Respondent is between Femi Aborishade Esq., and Olusegun Ogodo Esq., Counsel argued that the Appellants are not Femi Aborishade Esq., and therefore cannot rightly complain on the Counsel representation of the 1st Respondent. He stated that since Femi Aborishade is not a party to this suit, the Appellants are crying more than the bereaved. Counsel adumbrated further that Femi Aborishade Esq., neither applied for setting aside nor appealed the trial Courts ruling on change of Counsel for the 1st – 5th Respondents. He pointed out that since the Appellants were not parties at the trial Court, they cannot rightly claim that their right to fair hearing was breached.
On issue 2, Counsel pointed out that ground 1 of the Appellants’ Notice of Appeal does not relate to any issue decided in the final judgment. He furthered that while the Appellants sought leave to appeal the final judgment of the trial Court, they did not seek leave to appeal the trial Court ruling refusing to join them as a necessary party, which is an interlocutory ruling that requires leave to appeal. He called in aid Section 4 of the Court of Appeal Act, 2004.
He submitted that Appellants’ ground 1 is incompetent and liable to be struck out. Counsel submitted that the issue as to participation of the 2nd – 5th Respondents in the said election is a fresh issue not covered by the trial Court’s judgment, but was raised by the Appellants without leave of Court which renders the said ground 1 also incompetent.
Counsel argued in the alternative that the appellants are not necessary parties in the pre-election matter as to nomination of candidate by the 1st Respondent and acceptance of such candidate by the 6th and 7th Respondents. He relied on APC V. PDP (2015) FWLR (Pt. 791) 1493 at 1542 para. A to define a necessary party as a party whose presence is indispensable to the resolution of the dispute. He argued that while the Appellants may be interested in the outcome of pre-election matter between the 1st – 5th Respondents and the 6th and 7th Respondents, they have no interest in the case brought by the 1st Respondent and its candidates as to sponsorship and nomination of candidates which is a matter strictly between the 1st – 5th Respondents and the 6th and 7th Respondents. He adumbrated that the 1st – 5th Respondents’ main relief was on the right of the 1st Respondent to sponsor the 2nd – 5th Respondents in the Ondo State Local Government election, while the relief on dissolution of the Local Government Council which affected the Appellants are ancillary reliefs which was meant to give effect to the main reliefs.
He argued spiritedly that it is the main reliefs that confers jurisdiction on Court and determines who is a necessary party. He posited that the Appellants cannot claim to be necessary parties to the 1st – 5th Respondents’ main reliefs A, B, C and D granted by the trial Court. He is of the view that the Appellants who participated in an election knowing fully well that there is a dispute in respect of the said election pending in Court cannot turn around and insist that the lower Court has no right to decide a matter before it which was instituted before the conduct of the election. He called in aid the case of Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621, to the effect that the election that produced the Appellants ought not have been conducted in the first place since the law required that parties in a pending suit maintain the status quo till the suit is determined by the Court.
On issue 3, Counsel conceded that it is only an Election Petition Tribunal that can validly cancel or invalidate an election after it has been conducted. However, he posited that the main issue dealt upon by the trial Court was a pre-election matter of nomination of candidate by the 1st Respondent. He relied on Salim V. Congress for Progressive Change (2013) All FWLR (Pt. 677) 613 at 630 para. D, to the effect that issues of disqualification, nomination and sponsorship of a candidate for an election preceded the election and are therefore pre-election matter. He adumbrated that it is when an action is filed that determines whether or not it is a pre-election matter.
He furthered that the Originating Summons in this matter was filed on 16/3/2016, and the suit was in respect of nomination of candidates by the 1st Respondent which preceded the election. Counsel posited that the Appellants in their argument, elevated ancillary relief granted by the trial Court to give effect to his judgment as a proof that the trial Court dealt with post election matter. Counsel adumbrated further that while the 1st – 5th Respondents’ main reliefs 1 – 5 conferred jurisdiction upon the Court to hear the matter as a pre-election matter, ancillary reliefs 6 – 8 were necessary to give effect to the Court’s judgment and protect the Court’s integrity to hear and decide the case. Counsel contended that it cannot be rightly said that the 1st – 5th Respondents’ suit was for enforcement of fundamental rights since the Originating Summons for determination of questions of law and the claims borders or relates to election schedule to be conducted by the 6th and 7th Respondents. He argued that the cases relied on by the Appellants in their argument relates to chieftaincy and lost of studentship matter which raised clear fundamental right issues unlike the instant case. He relied on the case of Okadigbo V. Chidi (2015) All FWLR (Pt. 792) 1650 to the effect that the law is trite that an amendment granted pursuant to pre-election matter does not in any form make the entire suit a post election matter because the amendment was granted after the holding of the election since it is equally trite in law that an amendment dates back to the date the action or process was filed.
On their issue 4, Counsel submitted that the trial Court rightly allowed the amendment of the 1st – 5th Respondents’ Originating Summons in other to bring it in line with the development of the case. He argued that it cannot be rightly said that the amendment introduced a new cause of action since it only made available to the lower Court consequential reliefs which if granted would give effect to the judgment of the Court. He adumbrated that no purpose would have been served had the trial Court resolved the issue as to sponsorship of 1st Respondent and nomination of its candidates without allowing them to participate in a fresh election.
He relied on the case of Okadigbo V. Chidi (supra) at 941 paragraphs B – C to define a consequential order as an order flowing from the judgment. It is essentially one which makes the principal order effective and effectual or which follows necessarily as being incidental to the principle order. He furthered that the reliefs ordering fresh election in this matter was a consequential order incidental to and flow from the principal order which allowed the 1st ? 5th Respondents to participate in the election and it is directed at the 6th – 8th Respondents in this matter who conducted the election. He contended that there would have been no live issues to be decided had the trial Court refused to allow the amendment to include consequential orders. He further placed reliance on Okadigbo V. Chidi (supra) to submit that the grant of such consequential order does not turn a pre-election matter to a post-election matter. He urged that the appeal be dismissed as lacking in merit.
Responding vide their Reply Brief, the Learned Appellants’ Counsel argued that it was wrong for Olusegun Ogodo Esq., to have come into the matter without the knowledge of Femi Aborishade Esq., who filed the originating Summons and that it contravened the provisions of Order 48 Rule 3 of the Ondo State High Court (Civil Procedure) Rules 2012.
He pointed out that the originating Summons filed by Femi Aborishade Esq., did not in any way touch on the election of the Appellants but with the purported change of Counsel, the new Counsel Olusegun Ogodo filed an amendment of the Originating Summons with reliefs that affected the interest of Appellants. He adumbrated that the said change of Counsel is fraudulent and that the fraudulent act led to the amendment that resulted in the cancellation of Appellants’ election. He contended that since the judgment affected the Appellants; the Appellant have the locus standi to appeal against the judgment.
Counsel submitted that, in any case, the issue of whether or not the Appellants have locus standi or sufficient interest on the subject matter has been resolved for the Appellants on 9/3/2018 when this Court granted leave to them to appeal as an interested parties. He is of the opinion that, that issue is now caught by issue estoppel.
On non inclusion of Olusegun Ogodo Esq., and Femi Aborisade Esq., Counsel argued that parties to a suit are not limited to those expressly named as parties on the face of the processes but includes agents, assigns, privies etc. He posited that Olusegun Ogodo Esq., and Femi Aborishade Esq., are privies by law in this case.
On the absence of common interest of the Appellants and 1st Respondent, Counsel argued that their interest is common since the Appellants opposed this case and the 1st Respondent wanted the suit discontinued. Counsel argued that Femi Aborishade Esq., could not move the motion for discontinuance since the trial Court specifically barred him from appearing for the 1st Respondent. He argued that if the Court had inspected its record, it would have seen that there are pending application for discountenance of this suit. On the issue that non-joinder does not arise from the judgment, Counsel responded that where necessary parties to a suit are not joined, such failure raises both issue of jurisdiction and denial of fair hearing. He reiterated that the Appellants? ground 1 is a contention that the lower Court lacks jurisdiction to determine the suit without joining the Appellants whose election were directly affected by the judgment. On failure to obtain leave to appeal interlocutory ruling refusing joinder, Counsel argued that the leave to appeal against the judgment as an interested party granted by this Court on 9/3/2018 suffices.
He added that the Appellants’ complaint or appeal is against the judgment itself that set aside the Appellants’ election when they were not made parties to the suit. On principal and ancillary reliefs, Counsel argued that the trial Court did not differentiate the reliefs in its order. He furthered that the Respondents admitted that some of the reliefs affected the interest of the Appellants. He adumbrated further that the so called principal reliefs constituted their grounds of appeal in this matter since those reliefs were granted pursuant to the amended Originating Summons. He furthered that the trial Court lacks jurisdiction to entertain the principal reliefs since it is not an Election Tribunal. On the issue that the Appellant were aware of the pendency of this suit before the election that produced them were conducted, Counsel replied that the Appellants did not know about the pendency of this suit.
On the 6th – 8th Respondents’ submission that this suit is a pre-election matter, Counsel argued that it is not a pre-election matter simpliciter. He furthered that assuming without conceding that it was a pre-election matter touching the 1st Respondent’s right to nominate candidates for the election, that since the reliefs sought and granted affected the Appellants, that the non-joinder of the Appellants robs the trial Court of jurisdiction to determine the suit.
On the 6th – 8th Respondents’ submission that the amendment was granted to enable the Court grant consequential orders, Counsel contended that a Court of law cannot rightly grant a principal, consequential or ancillary order without necessary parties before it. He adumbrated that out of 9 reliefs sought at the trial Court by the Respondents, 7 directly affected the Appellants. He urged that the appeal be resolved for the Appellants and the Judgment of the trial Court set aside.
RULING ON 4TH RESPONDENT’S OBJECTION
The 4th Respondent’s objection on the competence of this appeal is premised on two ground, i.e., the non-fixing of the Nigeria Bar Association’s Stamp on the Appellants’ Notice of Appeal, and that the Appeal was filed at wrong registry. I shall attend to the issues seriatim.
There is no gainsaying the fact that the combined effect of Section 10 (1) – (3) of the Rules of Professional Conduct for Legal Practitioners 2007, is that any document prepared and filed by a legal practitioner in Nigeria without the approved seal/stamp of Nigeria Bar Association shall be deemed not to have been properly filed. It need not be emphasized that the said seal/stamp is produced by the Nigeria Bar Association and contains the legal practitioner?s detail such as his name and call number on the roll domiciled with the Supreme Court. By necessary implication, the rationale for the requirement of the seal/stamp is inter-alia to check quackery among legal practitioners in Nigeria. The Supreme Court had given judicial interpretation of Section 10 (1) – (3) of the Rules of Professional Conduct for Legal Practitioners, to the effect that failure to affix the said N.B.A Seal/Stamp would not render the process incompetent but irregular, that can be cured by regularising the process.
See. Gen Bello Sarkin Yaki V. Senator Abubakar Atiku Bagudu (2015) 18 NWLR (Pt. 1491) 288; Nyesom V. Peterside & Ors (2016) LPELR 40036. There is nothing before the Court to show that the Appellants applied for and did infact regularize the said Notice of Appeal. However, each case is to be resolved on its own peculiarities.
Parties are ad idem that a photocopy of receipts of payment for the N.B.A. Stamp/Seal and for Bar Practicing fee of Olusola Oke, Esq., who signed and filed the subject process was attached to the process. To my mind, those receipts raises a presumption albeit, rebuttable, that Olusola Oke is a legal practitioner whose name is on the roll in Nigeria.
In other words that he is not a quack. This presumption was not rebutted by the 4th Respondent in this case. I have earlier on in this judgment pointed out that the subject stamp/seal is produced by N.B.A. The stamp/seal is not cash and carry product. Since you need to apply for it by making payment first and wait for it to be supplied by N.B.A. It is not likely that NBA will produce same in advance, since it will contain the details of individual legal practitioner. That presupposes that payments must precede production.
It is instructive to note that Olusola Oke made the payment for Bar Practicing fee and NBA seal/stamp on 23/02/2018. The peculiar circumstances of the case is such that it will be unconscionable to hold that the Notice of Appeal attached with evidence of payment for practicing fee and seal/stamp is still irregular as much as a process filed without the stamp/seal or evidence of payment for same and practicing fee. There is no doubt that some cases are time constraint. The poser then will be, would the constitutional right of a citizen to ventilate his grievances be defeated by the delay of NBA in producing and making available the said seal/stamp after payment for same have been made I make haste to answer in the negative. That would amount to sacrificing substantial justice at the altar of technicality. This leg of the objection is resolved for the Appellants.
On the second leg of the objection, Section 8 (1) of the Court of Appeal Act, Cap C 36, Laws of the Federation of Nigeria, 2004 is emphatic that the practice and procedure of the Court of Appeal shall be regulated by the Court of Appeal Act and Court of Appeal Rules.
As to proper registry to file Notice of Appeal, Order 7 Rules 2 (1) is pertinent and for ease of appreciation, I shall reproduce same, hereunder, thus:-
Order 7 Rule 2 (1) ?All appeals shall be by way of rehearing and shall be brought by Notice (hereinafter called ?the notice of appeal? to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected for service on such parties.
This provision is unambiguous given the fact that a record of appeal is compiled at the Court below and a record of appeal is incompetent without a notice of appeal. It need not be emphasized that the Court of appeal becomes seized of an appeal upon transmission of the record of appeal and the entering of the appeal at the Court of appeal. The fact that leave to appeal was sought for and obtained at the Court of Appeal does not seize the Court of Appeal with the appeal.
This leg of 4th Respondent’s objection is also resolved for the Appellants. On the whole, the 4th Respondent’s preliminary objection lacks merit and is hereby discountenanced.
RULING ON 6TH – 8TH RESPONDENTS’ OBJECTION
The crux of the 6th – 8th Respondents’ objection is that the Appellants lack locus standi to raise ground 4 of the Notice of Appeal bordering on which Counsel represented the Respondents at the Court below. It is notorious in law that locus standi denotes the legal capacity to bring an action in the law Court. The legal capacity is usually determined by whether or not the Plaintiff has sufficient interest in the subject matter. See Anamelchi Iteogu Esq. V. The LPDC (2009) 12 SCNJI; Basinco Motor Ltd V. Woermann Line & Anor (2009) 6 SCNJ 222; Prince Abdul Rasheed A. Adetono & Anor V. Zenith International Bank Plc (2011) 12 SCNJ 497.
The indisputable facts on record in this matter show that Femi Aborishade Esq., was the Counsel that filed this matter for the 1st – 5th Respondents. But that on 21/3/2017, the trial Court heard and granted an application dated 24/11/2016 for change of Counsel for the 1st – 5th Respondents from Femi Aborishade Esq., to Segun Ogodo Esq. Femi Aborishade Esq., was neither in Court on the said 21/3/2017 nor did he attend Court on 27/3/2017. However, on 29/3/2017, E. O. Udofot Esq., attempted to hold the brief of Femi Aborishade for the 1st – 5th Respondents but was informed by the Court that Femi Aborishade Esq., has ceased to be Counsel on record for the 1st – 5th Respondents by virtue of the subsisting Court order of 21/3/2017. Again, on the proceedings of 31/3/2017, Femi Aborishade Esq., attempted to appear for the 1st – 5th Respondents but the Court reminded him of the Court’s subsisting order of 21/3/2017 to the effect that Segun Ogodo is the Counsel on record for the 1st – 5th Respondents. It is pertinent to point out the fact that Femi Aborishade Esq., appeared not to have been aggrieved since he neither applied that the order for change of Counsel be set aside as having being obtained fraudulently, nor did he appeal the said order. It is equally pertinent to also point out that at this point, the Appellants were not yet in the matter. Indeed the Appellants were not parties to this matter at the trial Court.
They became interested parties in this matter by virtue of order of this Court made on 9/3/2018. It is also instructive to point out that on 21/3/2017 when the application for change of Counsel was heard and granted, the amendment to the originating summons to include reliefs the Appellants alleged to have affected their interest was not yet made. On this to score, it is safe to conclude that at the point the application for change of Counsel was granted, the Appellants have no interest on the subject matter of this suit. In any case, Femi Aborishade is the proper person to complain on the issue of change of Counsel and he is not a party in this appeal. It must be borne in mind that since Femi Aborisahade had ceased to be the Counsel on record for the 1st ? 5th Respondents from 21/3/2017, any application filed by him, post 21/3/2017 cannot be entertained by Court except the one seeking to set aside the order, which is clear from the records that he did not file. In the light of the above, grounds 1, 2 and 4 of the 6th ? 8th Respondents? objection succeeds. Ground 4 of the Appellants’ Notice of Appeal and issue 4 distilled therein are hereby struck out, as incompetent.
The second leg of 6th – 8th Respondents’ objection is that Appellants’ ground I on the Notice of Appeal is incompetent since it complained about trial Court’s ruling refusing to join the Appellants as an interested party. That the said Ruling is distinct from the final Judgment which the Appellants appealed against by this appeal. It is glaring on the record of appeal that both the ruling and final judgment were delivered the same day. i.e. 31/3/2017. There was no time for the Appellants to appeal the said Ruling refusing to join them as interested parties. Since the final Judgment was delivered on the same day with the ruling, the trial Court becomes functus officio. The only options to the Appellants was to appeal the entire Judgment after all the reliefs granted the 1st – 5th Respondents by the trial Court which the Appellants alleged affected their interest were made in the final Judgment. In any case, the Appellants rights to participate in this suit as parties were foreclosed by the said rulings thereby making the said ruling a final judgment, which does not require leave to appeal. It is the effect of the order of Court on issues decided that will show whether or not the ruling is final or not. On this score, the second leg of the 6th – 8th Respondents’ objection failed and same is hereby discountenanced. Appellants ground 1 is valid and competent.
RULING ON APPELLANTS’ PRELIMINARY OBJECTION TO 4TH RESPONDENT’S BRIEF OF ARGUMENT.
The grouse of the Appellants in their objection is that the 4th Respondent’s issue 1 does not emanate from the grounds of appeal contained in the Appellants’ Notice of Appeal. It is a notorious fact that issues raised by any of the parties that does not emanate from the grounds of appeal is incompetent and must be discountenanced. In other words, issues formulated by the Appellant or Respondent must necessarily be based on competent ground of appeal contained in the Notice of Appeal. See Mallam Yusuf Jimoh & Ors V. Mallam Karimu Akande & Anor. (2009) 1 SCNJ, 107; Rauph Bello Oseni V. Chief Lasisi Bojulu (Deceased) & Ors (2009) 12 SCNJ 44; Hon Zakawanu Garuba & Ors V. Hon. Eli Bright Omokhodion (2011) 6 SCNJ, 334; Iheonnekwu Ndukwe V. The State (2009) 2 SCNJ 223.
I have carefully examined grounds 6 and 7 of the Appellants ground of appeal in the Notice of Appeal and it is clear that the two grounds question the trial Court’s order for amendment of the 1st ? 5th respondents? Originating Summons. It is equally clear that the 4th Respondent’s issue is on whether the said grounds 6 and 7 can question the said order for amendment which is interlocutory and discretionary without leave of Court first sought and obtained. I am unable to hold that the said 4th Respondent’s issue 1 do not emanate or relate to those grounds. An issue does not relate to a ground when it attacks or challenges another issue than that contained in the ground. I am aware of no law or judicial precedent that prescribed a particular format for couching issues for determination. And the Appellants? Counsel did not commend any to me either. I am equally unaware of any law or judicial precedent that made a distinction between what should be argued as a preliminary objection or as an issue for the determination. I am of the firm view that the choice is usually for the Respondent’s Counsel to make.
On this note, the objection lacks merit and is accordingly discountenanced.
RULING ON APPELLANTS’ PRELIMINARY OBJECTION TO THE 6TH – 8TH RESPONDENTS’ BRIEF OF ARGUMENT.
The Appellants objected that the 6th – 8th Respondents’ issues for determination are not issues but objections that does not relate to the grounds of appeal contained on the Notice of Appeal. He pointed out that the 6th – 8th Respondents did not file cross-appeal or Respondents Notice. I have earlier on in this Judgment precisely, while resolving the Appellants’ objection to the 4th Respondent’s Brief held that what is of moment is whether the issue emanated or related to the grounds of appeal contained in the Notice of Appeal.
I have equally paid a deserved visit to the 6th – 8th Respondents’ issues for determination and it is glaring that the 4 issues related to the grounds of appeal contained on the Notice of Appeal. There is no law or judicial precedent that specified what defence could be argued as a preliminary objection or as an issue for determination. The Learned Appellants’ Counsel did not refer me to any either.
The choice of what defence to put forward and whether to argue same as preliminary objection or issue for determination is that of the Respondent?s Counsel. This objection lacks merit and is accordingly struck out.
I shall now resolve the appeal on the 3 surviving issues of the Appellants. Appellants’ issue 4 was struck for incompetence pursuant to the 6th – 8th Respondents’ preliminary objection.
RESOLUTION OF ISSUE 1
It will amount to stating the obvious to say that the right to fair hearing is a constitutional one such that any breach of it will necessarily render the proceedings null and void. The doctrine of fair hearing has been immortalized into the Latin maxims of ‘audi alteram partem and nemo judex in causa sua’. The audi alterem partem principle affords both sides to a dispute ample opportunity of presenting their cases to enable the Court give a fair and just decision. In order words a decision is said to be just and fair when both parties to a dispute are afforded a hearing or an opportunity of a hearing.
If a hearing or opportunity of being heard is denied a party, the decision from such proceeding will be said to be perverse and liable to be set aside on appeal.
See: Section 36 (1) of Constitution of Federal Republic of Nigeria 1999 (as amended); Vivian Clems Akpomgbo-Okadigbo & Ors V. Egbe Theo Chidi & Ors (No.1) (2015) 10 NWLR (Pt. 1466) 171.
However, to determine whether the Appellants herein is entitled to be heard in this case, a visit must be made to the facts and circumstances of this case. The undisputed facts in this case is interestingly amenable to easy comprehension. The 6th – 7th Respondents refused to allow the 1st – 5th Respondents participate in the then forth coming Local Government Council Election in Ondo State, because INEC intends to appeal against the judgment of the Federal High Court, Abuja that set aside INEC’s deregistration of the 1st Respondent as a political party in Nigeria. On 16/3/2016, the 1st – 5th Respondents instituted the action that culminated into this appeal vide Originating Summons seeking for Court order compelling the 6th and 7th Respondents as 1st and 2nd Defendants, to obey the subsisting order of the Federal High Court, Abuja, by including its nominated candidates to participate in the scheduled Ondo State Local Government Council Elections. While the case was pending in the lower Court, the 6th and 7th Respondents went ahead and conducted the said election on 23/4/2016 and did not allow the 1st Respondent and its duly nominated candidates, 2nd – 5th Respondents to participate. The said election of 23/4/2016 produced the Appellants as winners.
The 1st – 5th Respondents applied and was granted order for consequential amendment to accommodate the new development on ground. It is decipherable from the above facts that this case is a pre-election matter between the 1st – 5th Respondents and the 6th and 7th Respondents. The cause of action was the refusal of the 6th and 7th Respondents to allow the 2nd – 5th Respondents participate in the scheduled election of 23/4/2016. In other words, the 1st – 5th Respondents’ action is against the unlawful exclusion from an election conducted by the 6th and 7th Respondents who are vested with the statutory powers and duties to conduct Ondo State Local Government Elections.
There is no doubt that the Appellants are not vested with such statutory powers and duties. The Appellants cannot exclude the 2nd to 5th Respondents from participating in the said election. Obviously, the Appellants were not in place when the cause of action arose between the 1st – 5th Respondents and the 6th and 7th Respondents resulting in the commencement of this action. The Originating Summons also do not disclose any cause of action against the Appellants.
It is pertinent to point out that the 6th and 7th Respondents conducted the election that produced the Appellants without allowing the 2nd – 5th Respondents to participate in disobedience to a subsisting Federal High Court Order. The necessary implication of the said disobedience is that the election that produced the Appellants is invalid ab initio.
A right acquired from an illegality cannot be enforced by the Court. Court orders and judgments are binding and subsisting until it is set aside by a Court of competent jurisdiction. See Peter Obi V. INEC (2007) 7 SCNJ 1; Ekanem Ekpo Otu V. A.C.B International Bank Plc & Anor (2008) 1 SCNJ 189; Uyanemenam Nwora & Ors V. Nweke Nwabueze & Ors (2011) 12 SCNJ 67; Hon. Dr. Okechukwu Udeh V. Barrister Handel Okoli & Ors (2009) 3 SCNJ 1.
It need not be emphasised that it was the illegal election that was set aside by the trial Court. On this score, this issue is resolved against the Appellants.
RESOLUTION OF ISSUE 2
The crux of the Appellants’ grouse in this issue is that the trial Court lacks the jurisdiction to grant the 1st – 5th Respondents’ reliefs, for not being an Election petition Tribunal. I have earlier on while resolving issue 1 held that from the undisputed facts and circumstances of this case, this case is a pre-election matter on nomination and sponsorship of the 1st Respondents’ candidates in the scheduled election. The apex Court had occasion to expatiate on the nature of issues of nomination and sponsorship of candidate for election in the case of Vivian Clems Akpamgbo-Okadigbo & Ors V. Egbe Theo Chidi & Ors (No. 1) (2015) 10 NWLR (Pt. 1466) 171 at 196 paragraph B, when the Court held, thus:
‘Now, a pre-election matter as the phrase connotes is a cause of action which predates and does not constitute any complaint against the actual conduct of an election. In Amaechi V. INEC & Ors (No. 1) (2007) 18 NWLR (Pt. 1065) 42, this Court has held that issues of nomination and sponsorship of party?s candidates for an election precedes the election and are therefore pre-election matters.”
It is not in dispute that the cause of action in this matter i.e. nomination and sponsorship of the 1st Respondent’s candidates (the 2nd – 5th Respondents) herein and the actual challenge of same vide this action predates the election of 23/4/2016 that produced the Appellants as winners. It is a pre-election matter and the trial Court had jurisdiction to hear and determine same. It ought be borne in mind that the action of the 1st – 5th Respondents did not attack the actual conduct of the election and declaration of the Appellants as winners. Their action is an attack on the right of the 6th and 7th Respondents to conduct the election excluding the 1st Respondent’s duly nominated candidates in the first place. It is pertinent to point out at this juncture, that none of the 1st – 5th respondents’ four (4) questions for determination contained in the Amended Originating Summons attacked or touched on the declaration or return of the Appellants as winners of the election conducted by the 6th – 7th Respondents on 23/4/2016. It is a universal knowledge that the Appellants neither conducted nor prevented the 2nd – 5th Respondents from participating in the election of 23/4/2016.
The Appellants only participated in the illegal election. A question as to the propriety or otherwise of conducting the election itself excluding the 2nd – 5th Respondents in the first place, is not the same as a question as to or an attack on the rights acquired vide the said election. Having ruminated this much, I am constrained to, and I so do, resolve this issue against the Appellants.
RESOLUTION OF ISSUE 3
This issue queries the jurisdiction of the trial Court to entertain and decide this suit on the amended Originating Summons. Precisely, the Appellants contention herein is that the amendment introduced a new cause of action different from the original cause of action, into this suit. It is trite in law that where an amendment would change the nature of claims, or introduce a new cause of action, that such an amendment will be disallowed. See Jessica V. Bendel Insurance Co. (1993) 1 SCNJ 240 at 244; Okoli V. U.B.N (1999) 6 SCNJ 193 at 203. However, where, the amendment only introduced fresh claims arising out of the original cause of action, to disallow the amendment would defeat one of the main purposes of an amendment, namely that as far as possible in a proceedings, all questions, both main and incidental should be decided so as to prevent multiplicity of actions. See, Oguma Associated Companies (Nig) Ltd V. International Bank for West Africa (1988) 1 NWLR 658. It is notorious in law and indeed needs no citation of authorities that a party is at liberty to amend his pleadings within the ambit of law and procedure, any time before judgment. And when an amendment is done, it relates back to the date when the original process was filed and not the date the order was made. See:SPDC (Nig) Ltd V. Chief Tigbara Edamkue & Ors (2009) 14 NWLR (Pt. 1160); Mobil Oil (Nig.) Plc v. IAL 36 Inc. (2000) 4 SCNJ 124.
In the case of Vivian Clems Akpamgbo-Okadigbo & Ors V. Egbe Theo Chidi & Ors (No. 1) (supra), at 197 paragraphs B – C, the Supreme Court, on the effect of an amendment, opined thus:-
‘learned Counsel to the 1st ? 17th Respondents are right that the amendment effected to the Originating Summons following the leave sought and obtained from the trial Court after the election in respect of which the Court is by the further amended Originating Summons asked to pronounce who 19th Respondent?s lawful candidates are, does not convert the suit from the pre-election cause that it is to a post-election cause the Appellants assert it to be. As rightly submitted by Learned Respondents? Counsel, an amendment takes effect not from the date it is ordered by the Court, but from the date of the original document the order of Court amends.’
It is eminently clear from the excepts of the apex Court’s judgment reproduced above that an amendment of an Originating Summons does not catapult a pre-election cause to a post-election cause since the amendment relates back to the date the originating Summons amended was filed. In that wise, a dispassionate appraisal of the facts and circumstances of this case disclosed that no new cause of action was introduced by the amendment of the Originating Summons. All the amendment accomplished was to bring the case in line with the new development i.e. the 6th and 7th Respondents’ illegal action of going ahead to conduct the election without allowing the 1st respondent’s duly nominated candidates, that is 2nd – 5th Respondents to participate. In other words, the amendment only introduced fresh claims arising out of the original cause of action. A refusal of the amendment would have rendered the Court’s judgment a fait accompli.
Furthermore, I have paid a deserved visit to the 1st – 5th Respondents’ Amended Originating Summons together with the Supporting Affidavit domiciled at pages 283 to 249 of the record of appeal, and a careful perusal of the reliefs therein, show that reliefs 5, 6, 7 and 8 are incidental or ancillary to reliefs 1, 2, 3 and 4 that are principal reliefs. The Black’s Law Dictionary, 10th Edition at page 302 defines ‘ancillary claim’ as ‘a claim that is collateral to, dependent on or auxiliary to another claim’. The grant or refusal of reliefs 5, 6, 7 and 8 is tied to the success or failure of reliefs 1, 2, 3 and 4. Therefore, it is safe to hold that reliefs 5, 6, 7 and 8 are meant to give effect to reliefs 1, 2, 3 and 4 that are main or principal reliefs of the 1st – 5th Respondents, directed to the 6th and 7th Respondents who conducted the election of 23/4/2016 without the 2nd – 5th Respondents in glaring disobedience to subsisting order of Federal High Court that the 1st Respondent be allowed to field its duly nominated candidates i.e., the 2nd ? 5th Respondents herein. In the light of the above, this issue is also resolved against the Appellants.
Having resolved all the issues in this appeal against the Appellants, this appeal lacks merit and is accordingly dismissed. The judgment of Hon. Justice Adesola Sidiq of Ondo State High Court, Akure Division in Suit No. AK/68/2016, delivered on 31st March, 2017, is hereby affirmed.
Parties are to bear their respective cost of prosecuting and defending the action.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, Mohammed Ambi – Usi Danjuma, JCA, just delivered.
I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
My learned brother has admirably resolved the preliminary objections and all the issues submitted for determination in this appeal.
I wish to add a few words in support to the lead judgment. The proper venue for pre- election matter is the Federal High Court, High Court of a State or the High Court of Federal Capital Territory provided that the matter was filed before the conduct of the election. In the instant case, the matter was filed on the 16/23/2016 before the conduct of the election on 23/4/2016. Therefore, having filed the matter before the election, the matter qualified as a pre- election matter and Federal High Court had jurisdiction to entertain same.
See SALIM V. CPC (2013) 6 NWLR (PT. 1351) 501; NOBIS ELENDU V. INEC (2015) 16 NWLR (PT. 1485) 197; LOKPOBIRE V. OGALA (2016) 3 NWLR (PT. 1499) 328 AND ZAKIRAI V. MUHAMMED (2017) 17 NWLR (PT. 1594) 181. It is trite that where as in the instant case, a party files his matter before the election, the Federal High Court, High Court of a State or that of the FCT would have jurisdiction to continue with the matter up to finality even where the election had been conducted and the winner sworn in.
With these and the more elaborate reasons contained in the lead judgment, which I adopt as mine, this appeal should be dismissed. I equally dismiss the appeal. I endorse all the orders decreed in the lead judgment including the order as to costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: My learned brother MOHAMMED A. DAWUMA, JCA obliged me with a draft copy of the lead judgment just delivered. My learned brother has exhaustively and brilliantly dealt with all the salient issues raised for determination in this appeal. I whole heartedly endorse the reasonings and conclusions reached therein and adopt them as mine.
I am in complete agreement with my learned brother that this appeal is unmeritorious and I also accordingly dismiss it. I too affirm the decision of the lower trial Court.
Appearances:
Olusola Oke with him, Adefusi Owate, O.K. Olopele, O. B. Adetitun and O. A. OgunleyeFor Appellant(s)
E. Udofot, for the 1st-3rd Respondents.
Femi Emmanuel Emodamori with him, M.O. Ezebu (Mrs.) for the 4th Respondent.
Charles Titiloye, Esq. for the 6th-8 RespondentsFor Respondent(s)
